Debates in the Federal Convention of 1787

by James Madison

Saturday, September 15

In Convention. — Mr. CARROLL reminded the House that no address to the people had yet been prepared. He considered it of great importance that such an one should accompany the Constitution. The people had been accustomed to such, on great occasions, and would expect it on this. He moved that a committee be appointed for the special purpose of preparing an address.

Mr. RUTLEDGE objected, on account of the delay it would produce, and the impropriety of addressing the people before it was known whether Congress would approve and support the plan. Congress, if an address be thought proper, can prepare as good a one. The members of the Convention can, also, explain the reasons of what has been done to their respective constituents.

Mr. SHERMAN concurred in the opinion that an address was both unnecessary and improper.

Mr. LANGDON. Some gentlemen have been very uneasy that no increase of the number of Representatives has been admitted. It has in particular been thought, that one more ought to be allowed to North Carolina. He was of opinion that an additional one was due both to that State, and to Rhode Island; and moved to reconsider for that purpose.

Mr. SHERMAN. When the Committee of eleven reported the appointments, five Representatives were thought the proper share of North Carolina. Subsequent information, however, seemed to entitle that State to another.

Mr. LANGDON moved to add one member to each of the representations of North Carolina and Rhode Island.

Mr. KING was against any change whatever, as opening the door for delays. There had been no official proof that the numbers of North Carolina are greater than before estimated, and he never could sign the Constitution, if Rhode Island is to be allowed two members, that is, one fourth of the number allowed to Massachusetts, which will be known to be unjust.

Mr. PINCKNEY urged the propriety of increasing the number of Representatives allowed to North Carolina.

Mr. BEDFORD contended for an increase in favor of Rhode Island, and of Delaware also.

On the question for allowing two Representatives to Rhode Island, it passed in the negative, —

Article 1, Sect. 10, (the second paragraph,) “No State shall, without the consent of Congress, lay imposts or duties on imports or exports; nor with such consent, but to the use of the Treasury of the United States.”

In consequence of the proviso moved by Colonel MASON, and agreed to on the 13th of Sept., this part of the Section was laid aside in favor of the following substitute, viz: “No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.”

On the motion to strike out the last part, “and all such laws shall be subject to the revision and control of the Congress,” it passed in the negative, —

The substitute was then agreed to, — Virginia, alone being in the negative.

The remainder of the paragraph being under consideration, viz: “nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another State, nor with any foreign power, nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of delay until Congress can be consulted,” —

Mr. McHENRY and Mr. CARROLL moved, that “no State shall be restrained from laying duties of tonnage for the purpose of clearing harbors and erecting lighthouses.”

Colonel MASON in support of this, explained and urged the situation of the Chesapeake, which peculiarly required expenses of this sort.

Mr. GOUVERNEUR MORRIS. The States are not restrained from laying tonnage, as the Constitution now stands. The exception proposed will imply the contrary, and will put the States in a worse condition than the gentleman (Colonel MASON) wishes.

Mr. MADISON. Whether the States are now restrained from laying tonnage duties, depends on the extent of the power “to regulate commerce.” These terms are vague, but seem to exclude this power of the States. They may certainly be restrained by treaty. He observed that there were other objects for tonnage duties, as the support of seamen, &c. He was more and more convinced that the regulation of commerce was in its nature indivisible, and ought to be wholly under one authority.

Mr. SHERMAN. The power of the United States to regulate trade being supreme, can control interferences of the State regulations, when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction.

Mr. LANGDON insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the States ought to have nothing to do with it.

On motion, “that no State shall lay any duty on tonnage without the consent of Congress,” —

The remainder of the paragraph was then remoulded and passed, as follows, viz: “No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

Article 2, Sect. 1, (the sixth paragraph,) the words, “or the period for choosing another President arrive,” were changed into, “or a President shall be elected,” conformably to a vote of the seventh of September.

Mr. RUTLEDGE and Doctor FRANKLIN moved to annex to the end of the seventh paragraph of Article 2, Sect. 1, “and he (the President) shall not receive, within that period, any other emolument from the United States or any of them.”

Mr. GOUVERNEUR MORRIS had rather there should be no pardon for treason, than let the power devolve on the Legislature.

Mr. WILSON. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt, he can be impeached and prosecuted.

Mr. KING thought it would be inconsistent with the constitutional separation of the Executive and Legislative powers, to let the prerogative be exercised by the latter. A legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in acts of pardon.

Mr. MADISON admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President, that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either, an association of the Senate, as a council of advice, with the President.

Mr. RANDOLPH could not admit the Senate into a share of the power. The great danger to liberty lay in a combination between the President and that body.

Colonel MASON The Senate has already too much power. There can be no danger of too much lenity in legislative pardons, as the Senate must concur; and the President moreover can require two thirds of both Houses.

Article 2, Section 2, (the second paragraph) To the end of this Mr. GOUVERNEUR MORRIS moved to annex, “but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.”

The motion, being lost by the equal division of votes, it was urged that it be put a second time, some such provision being too necessary to be omitted; and on a second question, it was agreed to, nem. con.

Article 2, Sect. 1. The words, “and not per capita,” were struck out as superfluous; and the words, “by the Representatives,” also, as improper, the choice of President being, in another mode as well as eventually by the House of Representatives.

Article 2, Sect. 2. After the words, “officers of the United States whose appointments are not otherwise provided for,” were added the words, “and which shall be established by law.”

Article 3, Sect. 2, (the third paragraph.) Mr. PINCKNEY and Mr. GERRY moved to annex to the end, “and a trial by jury shall be preserved as usual in civil cases.”

Mr. GORHAM. The constitution of juries is different in different States, and the trial itself is usual in different cases, in different States.

General PINCKNEY also. He thought such a clause in the Constitution would be pregnant with embarrassments.

The motion was disagreed to, nem. con.

Article 4, Sect. 2, (the third paragraph,) the term “legally” was struck out; and the words “under the laws thereof,” inserted after the word “State,” in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.

Article 4, Sect. 3. “New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.”

Mr. GERRY moved to insert, after, “or parts of States,” the words, “or a State and part of a State;” which was disagreed to by a large majority; it appearing to be supposed that the case was comprehended in the words of the clause as reported by the Committee.

Article 4, Sect. 4. After the word “Executive,” were inserted the words, “when the Legislature cannot be convened.”

Article 5. “The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose, amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth Section of Article 1.”

Mr. SHERMAN expressed his fears that three fourths of the States might be brought to do things fatal to particular States; as abolishing them altogether, or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended, so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.

Colonel MASON thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind, would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.

Mr. MADISON did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States, as to call a Convention on the like application. He saw no objection, however, against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, &c. which in constitutional regulations ought to be as much as possible avoided.

Mr. SHERMAN moved to strike out of Article 5, after “legislatures,” the words, “of three fourths,” and so after the word “Conventions,” leaving future Conventions to act in this matter, like the present Convention, according to circumstances.

Mr. SHERMAN moved, according to his idea above expressed, to annex to the end of the article a further proviso, “that no State shall, without its consent, be affected in its internal police, or deprived of its equal suffrage in the Senate.”

Mr. MADISON. Begin with these special provisos, and every State will insist on them, for their boundaries, exports, &c.

Mr. GOUVERNEUR MORRIS moved to annex a further proviso, “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.”

This motion, being dictated by the circulating murmurs of the small States, was agreed to without debate, no one opposing it, or, on the question, saying no.

Colonel MASON, expressing his discontent at the power given to Congress, by a bare majority, to pass navigation acts, which he said would not only enhance the freight, a consequence he did not so much regard, but would enable a few rich merchants in Philadelphia, New York, and Boston, to monopolize the staples of the Southern States, and reduce their value perhaps fifty per cent., moved a further proviso, “that no law in the nature of a navigation act be passed before the year 1808, without the consent of two thirds of each branch of the Legislature. On which motion,—

Mr. RANDOLPH animadverting on the indefinite and dangerous power given by the Constitution to Congress, expressing the pain he felt at differing from the body of the Convention on the close of the great and awful subject of their labors, and anxiously wishing for some accommodating expedient which would relieve him from his embarrassments, made a motion importing, “that amendments to the plan might be offered by the State conventions, which should be submitted to, and finally decided on by, another general Convention.” Should this proposition be disregarded, it would, he said, be impossible for him to put his name to the instrument. Whether he should oppose it afterwards, he would not then decide; but he would not deprive himself of the freedom to do so in his own State, if that course should be prescribed by his final judgment.

Colonel MASON seconded and followed Mr. RANDOLPH in animadversions on the dangerous power and structure of the Government, concluding that it would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or other, he was sure. This Constitution had been formed without the knowledge or idea of the people. A second Convention will know more of the sense of the people, and be able to provide a system more consonant to it. It was improper to say to the people, take this or nothing. As the Constitution now stands, he could neither give it his support or vote in Virginia; and he could not sign here what he could not support there. With the expedient of another Convention, as proposed, he could sign.

Mr. PINCKNEY. These declarations from members so respectable, at the close of this important scene, give a peculiar solemnity to the present moment. He descanted on the consequences of calling forth the deliberations and amendments of the different States, on the subject of government at large. Nothing but confusion and contrariety will spring from the experiment. The States will never agree in their plans, and the deputies to a second convention, coming together under the discordant impressions of their constituents, will never agree. Conventions are serious things, and ought not to be repeated. He was not without objections, as well as others, to the plan. He objected to the contemptible weakness and dependence of the Executive. He objected to the power of a majority, only, of Congress, over commerce. But apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support.

Mr. GERRY stated the objections which determined him to withhold his name from the Constitution: 1. the duration and reëligibility of the Senate; 2. the power of the House of Representatives to conceal their Journals; 3. the power of Congress over the places of election; 4. the unlimited power of Congress over their own compensation; 5. that Massachusetts has not a due share of representatives allotted to her; 6. that three fifths of the blacks are to be represented, as if they were freemen; 7. that under the power over commerce, monopolies may be established; 8. the Vice President being made head of the Senate. He could, however, he said, get over all these, if the rights of the citizens were not rendered insecure, — first, by the general power of the Legislature to make what laws they may please to call “necessary and proper”; secondly, to raise armies and money without limit; thirdly, to establish a tribunal without juries, which will be a Star Chamber as to civil cases. Under such a view of the Constitution, the best that could be done, he conceived, was to provide for a second general Convention.

On the question, on the proposition of Mr. RANDOLPH, all the States answered, no.

On the question to agree to the Constitution, as amended, all the States, aye.